Taking Pluralism Seriously

I was counting down the minutes until I heard something like this from one of my friends. It falls to Julian, who says:

Enough already. Can we please stop pretending that failure to properly appreciate the wisdom of parochial, tribalist hicks (and I mean that in a geographically neutral sense) is some kind of moral failing? Yes, Bush crafted a message that was “simple and appealing to a huge mass of voting Americans.” That's what demagoguery is.

Will's post is ultimately no less condescending than the attitude he criticizes, attributing Bush's support less to substantive (if loathesome) policy agreement from the base, and more to his apparent embodiment of the spirit of the Volk. That may be the case, but if anything, it makes his base look worse, not better. As Penn Jillette says (roughly) in the most recent issue of Reason, sometimes respecting someone means saying “you're a fucking idiot,” because then you're at least taking their disagreement seriously. A difference over the morality of stem cell research, say, is at least in principle a substantive topic you can argue about. Disagreement that stems from one party's being enmeshed in some adolescent narrative about the True Spirit of America forecloses that possibility, because it amounts to concluding that your opponents are hypnotized, and that the best hope is to hypnotize them better. Maybe that's the case, but don't tell me it's less condescending.

Sure, sure Julian. Though I'm not sure you'd know a parochial, tribalist hick if one punched you in the face. Can you tell the difference between a Christian conservative MBA executive from Wichita and a toothless snake-handling trailer-dwelling Jesus freak, or do they look the same to you–all parochial, tribalist hicks–from such great heights? I really just don't see the point of this kind of talk, or the point of patting ourselves on our weak backs for being so well devoted to our comparative advantages.

In the event of a Kerry victory would we be sure to point out that his core included millions of parochial, tribalist, whatever-the-urban-correlate-of-“hicks”-is roused by “your children will starve in the streets/your jobs will vanish to Bangalore” rhetoric? Democrats, it can be shocking to remember, do not mainly depend on cosmopolitan newspaper columnists and college professors, and, no, we would not point it out. So why the especially invidious desription of the Christian Bush voter? Cultural bigotry? Northeastern xenophobia? Or is this a just a good hard truth that's really worth shouting from the rooftops? Each of us is no doubt jealous of our cultural identity, and we each need our “other,” I suppose, and to band together with our spiritual compatriots in trying times, but we don't have to be fatuous about it.

Sad as it may be to we heroes of reason, people do not think in a begriffsschrift, and it is pure silliness to imagine elections being won or lost on the basis of substantive debates about issues like stem cell research. Del Monte sells pineapple, Honda sells more Civics, by tapping into the spirit of the Volk and the Zeit and so forth, and candidates win elections the same way. There are whole companies in our modern day technologically advanced capitalist society devoted to the dark arts of geist-plumbing, and we don't get in huff about Goebbelsian demagoguery–at least we libertarians don't–when Apple starts moving beaucoup iPods due to savvy psychographic research.

It is not condescending to point out that human beings are human beings–coalitional, mythologizing, risk averse–unless one is in the grip of some kind of unreasonable expectation to the contrary. People take “adolescent” narratives about their origins, histories, coalitions and so forth dead serious, and implying that it's dirty to pander to this kind of thing is not a serious point as much as it is a complaint against the evolved constitution of human beings. (Is there, in someone or other's mind, an adolescent narrative of Will Wilkinson? Of Julian Sanchez? Of course, no.)

My point, which I guess wasn't clear, is not that there is a choice between substantive policy agreement and embodiment of the volkgeist. My point is that substantive policy agreement is driven by coalitional identification. People come to agree with Bush (or Kerry or anybody), and repeat his arguments, because they see him as one of them. That is, as far as I can tell, the way it works, our Cartesian rationalist hopes notwithstanding. Bush did a good job of it, and it really is worth understanding just what it is that he did.

I don't know about moral failings, but it sure is a prudential failing to refuse to connect with and understand the people one must convince if one hopes to make ideological and social progress. I wasn't saying agree, applaud, or affirm. Just muster enough sympathy, charity and abstract respect to enable minimal comprehension. Our opponents, on whatever side, are not hypnotized any more than we are. They think and act in a framework of value and identity different from, and in some ways better and worse than, ours. All I was saying was: we either get inside that framework and try to find points of leverage or our masters will rule us as they see fit, without the benefit of our wise counsel.

Related

“And I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons.”

Have you read any of her decisions? Have you even taken the time to read the commentary you find so repellent? Of course not. Better to demonize republicans rather than engage with their arguments (which are very similar to those of libertarians like Root and Epstein).

“She’s obviously super-qualified.”

Wow, not just qualified, but super-qualified! Who knew. I guess we can add Jonathan Turley and Jeff Rosen to your list of morally odious partisans.

From what I’ve read, she sounds like a minimally competent left-liberal who has no respect for property rights and who seems to think that ethnicity is an epistemic category.
But obviously I’m just a crazy partisan hack who can’t see the “liberaltarian” possibilities of this pick.

She’s a judge. You might not like the laws. But it’s her job to read ’em. And figure out what they apply, from time to time.

Lots of folks are engaging the Gingrich/Tancredo etc arguments, which boil down to “I don’t like the decision”. Which is fine. But that’s not a criticism of the judge. More typically they’re a criticism of the law, and a desire for an interventionist judge to undo the “legislative will of the people”.

Funny. Suddenly out of power in the executive, and the legislature, the GOP finds comfort in the prospect of an interventionist judge.

uknowbetter

As a white person, I have better experience to judge that she is a moron and that you are also a moron for calling Republicans “morally odious morons”.

That statement of hers is a big reason people are jumping on her. If a white person said something similar, the MSM would be screaming their heads off.

Irony is lost on people like you. Actually any intelligent thought is lost on people like you.

Maybe it’s because of your race. You just don’t have the proper experience to see things.

Nimed

Readers of your posts are quite aware of your irony. If heavy-handedness has one redeeming quality, it’s that it facilitates comprehension.

Perhaps you should consider the possibility that people “get” your comments, and it’s just that they don’t find them particularly interesting.

uknowbetter

Most of my posts are not ironic. This one was. It was playing off of Sotomayor’s comments: “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Turn that around and have a white person say something similar and people like Murali and the MSM would crap themselves. Her response proved my point.

Second thing, I got your reference. I just didnt think that the issue was really worth the noise you were making over it. Did she some crappy stuff? sure! If you want a serious criticism of sotomayer look at Radley Balko’s analysis of decisions she has made. Those should be worrying for americans.

Ive really no vested interests in what justices americans select for Superme Court. I dont live there, its not my country etc.

That said, uknowbetter should lighten up. Its not the end of the world if one liberal senator replaces another liberal senator. Is that going to change the voting patterns of the supreme court seriously from what we’ve been getting these past years? No Libertarians didnt get the justice they wanted. Sure. But thats because they didnt get a libertarian president. Its all par for the course. Its particularly exhausting following american politics. Too much noise over so little.

uknowbetter

I’m not all that incensed about her. Not any more than your typical brain-dead liberal.

But what I am incensed about is the crazy double standards that the MSM applies. She would be roasted if she was white and said the same thing.

Herb

Leaving aside whether or not Sotomayor is the best woman for the job, it has been amusing to hear Rush Limbaugh and Tom Tancredo decry her alleged racism. “Morally odious morons” sounds about right.

“Morally odious morons” maybe – but certainly morally inconsistent morons. They didn’t have any problem with Larry Summers suggesting that men may be better at the hard sciences than women, for example. Sotomayer can think that Latinas are wiser than white men all she wants as far as I’m concerned so long as she understands two things: (a) even if her generalization is true, it’s still the case that not all Latinas are wise and all white men fools and (b) the law should apply equally to all citizens regardless of relative racial wisdom, etc. If she understands these two things, then this statement doesn’t disqualify her.

I still don’t see the point of Will’s namecalling. It’s not informative, it’s not new, it’s not relevant, and it’s therefore not useful commentary. This blog is of above-average intelligence and occasionally produces a real gem – but this just isn’t one of them. I would actually be interested in his reasoned take Sotomayer’s record and legal philosophy. Potshots at Rush Limbaugh I can get just about anywhere.

mike shupp

Republicans are opposing the woman — with every bit of rhetoric in their bag — simply because Obama nominated her, that’s all.

Personally, I’m sorry the President didn’t nominate John Yoo. I’d be absolutely enthralled by the spectacle of 40 mostly elderly, mostly white, mostly male people in suits jumping up and down and screaming about John Yoo’s sins against human rights and dignity and his abuses of the rule of law.

cbyler

And I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons.

Hey, some of those people have built highly successful media and/or political careers on being morally odious morons. Why change now?

TapirBoy1

I think a lot of folks are missing the point of Will’s post. Yes, he wrote about the merits of the nomination, in a way that is fairly obvious and hard to contest (to wit, Will noted that he understands a non-libertarian President isn’t likely to nomnate a libertarian jurist to the Supreme Court). But, more to the point, I took Will to be commenting on the kind of crass and predictable spectacle that the nomination has cause, with Republican opinion leaders behaving as boorishly and viscerally as Democrats did when Justice Alito was nominated. I too hate this kind of grubby, circus electoral politics.

We’d be far better if we wen’t back to the old days when there were no such things as judicial confirmation hearings. None of this is to say that Sotomayor is a great pick (her tenure as a judge seems competent, but certainly not spectacular), or that some of her decisions and speeches are not subject to legitimate criticism. But shouting racist, klansman, etc., from the hilltops does indeed perpetuate the idea that the Republican Party is controlled by morally odious morons. The vitriolic response of some on this post simply provides further evidence of the point. One is reminded of how some Muslims attempted to show how peaceful their religion was by responding to the Danish Mohammed cartoons with almost perfectly self-refuting behavior.

Liz

“But, more to the point, I took Will to be commenting on the kind of crass and predictable spectacle that the nomination has cause, with Republican opinion leaders behaving as boorishly and viscerally as Democrats did when Justice Alito was nominated. I too hate this kind of grubby, circus electoral politics.”

This is essentially what I grabbed from the post as well. It’s not that criticism of Sotomayor is unwarranted, but the Republican response is so formulaic that I feel like I could preempt their comments much in the same way I can recite lines from Clueless before each scene.

The difference being that I thoroughly enjoy watching Clueless, of course.

uknowbetter

Yeah, their formula includes having her say a very dubious quote years ago.

Liz

No, their formula includes using that quote in very predictable ways.

uknowbetter

Do you expect them to praise a quote like that? Racialism is getting ridiculous.

Measure_for_Measure

Will hates politics? This has nothing to do with politics: Republicans who actually -you know- hold elected office are doing all they can to dial back the crazy.

No, this is about fundraising and self-promotion. Gingrich, Limbaugh, Buchanan – none of these characters will be running for office any time soon.

R. Kevin Hill

The only cases that seem to be attracting lot of attention are Ricci, and Maloney. Maloney first, as I think it is easier. IMHO, the Second Amendment should be regarded as incorporated into the Fourteenth and applied against the states, following a Hugo Black-esque approach to incorporation. The logical way to do that would be to take the reasonable regulation approach in Heller and just follow that in state fact patterns. BUT to say that saying that it is settled law that the Second Amendment only applies to the federal government does not evince hostility to gun rights; it is a totally in bounds reasonable way to go. Now I do think that after Heller, there is a much stronger argument for incorporation, since most of what’s incorporated are individual rights. But incorporation is a notoriously contested and murky area, and I don’t think there has ever been any consensus about the right methodology for it. Hostility to Soto here is pure political preference, and though I share that preference, I don’t see what there is to get all agitated about.

Ricci is even less of a no-brainer. I have NO idea what one should do here on the Equal Protection claim. It seems to me that where this is going is that it may turn into a day of reckoning for disparate impact analysis under Title VII altogether. Absent the EP claim, it seems to me that the city engaged in perfectly legitimate avoidance of a disparate impact Title VII claim against them, in good faith, and that there’s nothing special here from a statutory standpoint. But the EP claim may very well be a legitimate one. It seems that there is this broader history of conservative jurisprudence using equal protection to undo remedial efforts to combat racial discrimination, in the name of colorblindness, and so it is easy enough to see what justices informed entirely by political preferences would do here, and in terms of my own political preferences, I have long thought that the time has past where aggressive remedial efforts were needed (and disparate impact analyses under Title VII seem to me one of the more aggressive tools). But that’s policy. What the better EP analysis should be, policy aside, is something I confess to being utterly mystified by now. I guess the question would be, do Title VII disparate impact suits meet or fail to meet strict scrutiny. I can see an argument for disparate impact being *necessary* to remedy part discrimination, and remedying discrimination being a compelling state interest (I don’t think “diversity” is a compelling state interest). I don’t know. These issues seem hard to me as *legal* matters, even if they seem pretty easy to me as matters of political preference. Which leads me back to the political debate: someone who says that these issues are *easy* is just pushing their preferences, with a hefty dollop of inappropriate sanctimony and indignation. So Will is right, though for the reasons I’ve given.

Finally someone discussing the merits of Sotomayer’s decisions here rather than just calling namecallers names back.

As to the first issue – I find your discussion completely convincing, but I’m not sure why this then doesn’t go in the “con” column in deciding on her confirmation? We’re looking to confirm someone who shares our interpretation of the law as far as possible. If this is an ambiguous case where it’s not entirely clear what the right interpretation is, but what IS clear is that she doesn’t share ours, then isn’t that a reason to oppose confirmation? (All other things equal, of course – I get that you have to vote on the whole package, that there’s no line-item confirmation, as it were…)

As to the Ricci case – I’m right with you. It’s pretty clear to me too that the town was just trying to avoid litigation – who can blame them? There’s really no complaint against Sotomayer here – especially since it seems she’s pretty consistent in denying pretty much all racial claims suits, regardless of the race of the plaintiff. I have no idea what to think about Ricci – though I admit to a sneaking hope that the Supreme Court will use it to give us a rule that says that all that is required is that the testing authority make a good-faith effort to keep tests race-neutral, freeing us from a lot of ex post performance metric nonsense. That Sotomayer passed the buck on this one is fair enough – but I dont’ think that makes it wrong of me to say that I would’ve preferred it if she’d gone ahead and set that precedent.

Nothing about your thoughtful commentary here, of course, changes the fact that Will’s post is pretty useless. Calling namecallers names is just more namecalling when commentary is what’s actually required.

Mike Rappaport

You say you are in favor libertarian activism. I suppose that is because you like the results. Let me ask you, as a starting question, do you believe the written content of the Constitution should affect the judges’ decisions? In other words, does it matter whether that activism is authorized by the Constitution? If it does, what limits does that place on such activism?

c3

Will;
“God I hate politics”

So what is your preferred method of implementing policy?

And thanks for trying to nip the name calling in the bud.

R. Kevin Hill

Hey Josh. Thanks for the appreciative nod. I actually haven’t said a word about whether I approve her nomination or not (I do, but for reasons not yet broached by anyone). My only point is that she’s a pretty mainstream non-activist liberal judge who gave a speech about being proud to be a Latina, which also doesn’t make me lose sleep, except about the people who do. I have ideas about what the perfect justice would look like, but such nominees haven’t been placed before me, and it would be quite complex to explain what they would be like (if someone wants to nominate Akhil Amar, that works for me, though it seems pretty unlikely–I want someone who is sensitive to classical liberal principle AND history). But my hazy impression of the past few decades is that absent such nominees a libertarian agenda is best served by an evenly divided court, with one or two with some libertarian impulses as swing votes. We’ve had that to my satisfaction for some time now, so my biggest fear has been upsetting the balance. Since Stevens was the oldest, most likely to retire or die, that means a Dem nominee. That, among other reasons, was why I voted for Obama (you could call me an “Andrew Sullivan Republican” and I don’t vote LP above the state level). When the conservatives on the court start aging out, all else being equal, I’ll be willing to reconsider voting for a Republican for President again. For now, I’m more worried about a shift in majority overturning Roe, Lawrence, Boumedienne, etc.

R. Kevin Hill

Will and I agree, because we both believe that you can have democratic politics AND sane civility with a minimum of hysteria, hypocrisy and vindictiveness. Well, once upon a time you could.

MikeSchilling

And I really don’t get why many Republicans have taken this opportunity to reinforce the already widespread impression that they are morally odious morons.

Because they (Gingrich, Limbaugh, Hannity, Goldfarb, Tancredo, Liddy, etc) think that this sort of barely-disguised racism will benefit them personally by appealing to their intended audience. (And if that crowd aren’t vermin, they’ve spent years perfecting the imitation.)